In the past 10 days, two separate courts have handed down "diametrically opposed" rulings on the legality of the NSA's bulk telephony metadata collection programs. One, decided by a federal trial judge in Washington, found that the program was "likely unconstitutional"; the other, decided today by a federal trial judge in New York, found that the exact same program to be A-okay under our nation's statutory and constitutional law.

Though the two judges were at odds on many, many aspects of the law (run down expertly by my colleague Andrew Cohen here), one disagreement stands out, a central axis around which all other details aligned: Should the Supreme Court's 1979 ruling Smith v. Maryland guide the way for interpretation of the Fourth Amendment today? In that case, the Court found that people could have no "reasonable expectation of privacy" for information voluntarily disclosed to third parties. If Smith's logic extends to today, than the Fourth Amendment would not protect the metadata that cell-phone carriers are providing to the NSA.

As Andrew writes, "One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith."

Judge Richard Leon is the former. He wrote, "When do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith does not apply? The answer, unfortunately for the Government, is now."

Judge William Pauley, on the other hand, deferred to the precedent. The Supreme Court has not overruled Smith, he argued, and "the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases." That is a job for the Court alone.

But that didn't prevent Pauley from taking a look at that precedent anyway, and arguing that, you know, even if it were up to him, it still looks like a pretty good decision. He writes (citations removed):

Some ponder the ubiquity of cellular telephones and how subscribers' relationships with their telephones have evolved since Smith. While people may "have an entirely different relationship with telephones than they did thirty-four years ago," this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephone metadata.

Is Pauley right? Is our relationship with our phones enough the same as it was in 1979 that Smith should still apply?

At least one voice on the Court has already suggested that she is not convinced. Back in January of 2012, Justice Sonia Sotomayor wrote in a concurring opinion that Smith may be outdated (the majority in that case did not reconsider Smith). She argued (and I'm quoting at length because it's worth it):

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. ... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

There is a lot of merit to this argument. Pauley is right that, in a narrow sense, the basics of our relationship to our telecommunication carriers may be much the same (and in the case before him, he's only looking at telephone calls, which are quite the same as they were in the '70s),but Sotomayor's argument takes a wider view. She is arguing that third parties more generally play a very different role in our lives than they once did, and that our "reasonable expectations" have shifted over time. As I wrote back in June, "We daily convey our information to third parties -- Google, our cell-service provider, Facebook. For most people in America today, eschewing disclosures of this kind would leave them unable to go about their daily business. Can it really be that participating in life, the economy, and society require a forking over of one's claim to a 'reasonable' expectation of privacy?"

Moreover, to Sotomayor's point, the techniques of data analysis are light years more sophisticated than they were in '79. Even if the act of making calls looks the same, as Pauley says, the sorts of surveillance enabled by Smith are much more invasive. Sotomayor hints at one way the Court could go: Technology has changed in the past four decades, and the law Smith left us with no longer protects us. Time for a new paradigm.

Of course, there is another possibility: Perhaps Smith was a bad decision from the get-go; perhaps the Fourth Amendment should never have been interpreted so meekly with regard to the information we disclose to third parties. But maybe, we couldn't see that until the full implications came to pass, as they now have. If that's the case, let us hope that the justices see fit to change course, and lead us off a path we set down so many decades ago.

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